February 12, 2015
FEDERAL COURTS COMMITTEE OF THE NEW YORK COUNTY LAWYERS ASSOCIATION COMMENTS ON PROPOSED AMENDMENTS TO THE FEDERAL RULES OF APPELLATE PROCEDURE
The Federal Courts Committee (the “Committee”) of the New York County Lawyers Association (“NYCLA”) has approved the following comments concerning the proposed amendments to the Federal Rules of Appellate Procedure (the “Proposed Amendments”) proposed by the Judicial Conference Advisory Committee on Appellate, Bankruptcy, Civil and Criminal Rules (the “Advisory Committee”) and published for public comment on August 15,2014 If enacted, the amendments will become effective December 1, 2016.
NYCLA is an organization of nearly 9,000 lawyers. Its Federal Courts Committee comprises attorneys from all areas of the practice in New York, including governmental, corporate in-house, large-firm, and small-firm practitioners. NYCLA and its Federal Courts Committee issue reports and position papers on matters of interest to our membership, including proposed changes in law and procedure that we believe impact the public interest.
As further detailed below, the Committee generally supports the Proposed Amendments, but opposes certain of the proposed amendments and suggestions with respect to other items. In particular, the Committee opposes certain changes to the requirements for inmate filings. In the sections below, we first comment on a proposed amendment to the so-called “three days are added” rule, which we also address in our separate comments on the Federal Rules of Civil Procedure, and then offer comments on the proposed amendments to other rules in the Federal Rules of Appellate Procedure, including rules on inmate filings and changes in word count limits and amicus briefs.
PROPOSED AMENDMENTS AND COMMITTEE COMMENTS
- “Three Days Are Added” Rule
The Federal Rules of Appellate Procedure provide that where a party’s time to act is measured from the service of a paper, three days are added to that time if the paper is served other than by hand delivery. See Fed. R. App. P. 26(c). The Proposed Amendments would eliminate electronic service from the types of service that add three days to the other party’s time to act. In other words, for purposes of the “three days are added” rules, electronic service would be the functional equivalent of service by hand and would no longer trigger the rule.
The Proposed Amendment to the Federal Rules of Appellate Procedure is as follows:
Rule 26. Computing and Extending Time
(c) Additional Time after Certain Kinds of Service.
When a party may or must act within a specified time after service being served, 3 days are added after the period would otherwise expire under Rule 26(a), unless the paper is delivered on the date of service stated in the proof of service. For purposes of this Rule 26(c), a paper that is served electronically is not treated as delivered on the date of service stated in the proof of service.
The Proposed Amendments – and parallel Proposed Amendments to Rule 9006 of the Federal Rules of Bankruptcy Procedure and Rule 45 of the Federal Rules of Criminal Procedure – are based on the same underlying rationale. Fed. R. App. P. 25 was amended in 2001 to provide for service by electronic means. At the same time, Fed. R. App. P. 26 was amended to include such electronic service among the types of service that give the recipient three additional days to act. At that time, there were two reasons for such inclusion: (a) concerns about delays in electronic transmission due (for example) to incompatible systems or the like; and (b) a desire to induce parties to consent to electronic service, which initially was authorized only with the consent of the person being served.
The Proposed Amendments recognize that both of these reasons no longer exist. Electronic communication is now the norm, and is considered reliable. In most federal courts, electronic filing – the standard means of electronic service – is mandated in virtually all cases; any attorney wishing to practice before the court must “consent” to it. There is therefore little remaining reason to treat electronic service with the wariness that led to its initial inclusion among the types of service that extend a period to act by three days. As the Advisory Committee Notes to the Proposed Amendments point out, electronic service has become the norm.
In addition, eliminating the extra three days for the mode of service that is now the most common greatly simplifies the computation of time. As the Advisory Committee Notes point out:
Many rules have been changed to ease the task of computing time by adopting 7-, 14-, 21- and 28-day periods that allow “day-of-the-week” counting. Adding 3 days at the end complicated the counting, and increased the occasions for further complications by invoking the provisions that apply when the last day is a Saturday, Sunday, or legal holiday.
Finally, the Proposed Amendment would change the rule to provide for additional time only where a party’s time to act is triggered by service on that party (“after being served”), not where a party’s time to act is triggered by that party’s own service of a document (“after service”). This is obviously a simple matter of logic; there is no reason to give a party an extra three days by virtue of that party’s own choice to serve a document in a manner other than personal delivery or electronic service.
The Committee’s Comments:
The Committee generally endorses the adoption of the Proposed Amendments to Fed. R. App. P. 26 for all of the reasons set forth above. We do, however, make one observation.
Although the rules do not specify as much, as a practical matter an attorney can generally serve opposing counsel by hand only during the business hours of that counsel’s office. The reason for this is because, unless the paper is handed directly to opposing counsel, the rules require that it be delivered “to a responsible person at the office of counsel” (Fed. R. App. P.
25(c)(1)(A)), which requires, at a minimum, opposing counsel’s office be open and accessible.
Electronic service, in contrast, can be accomplished at any hour – regardless of whether the recipient’s office is open. This is one reasons why some attorneys prefer to serve papers electronically. But it also means that electronic service may not be quite the same as hand delivery for purposes of reasonable notice. A paper can be served electronically on a given day any time until 11:59 p.m., whereas in practice most attorneys could not receive service by hand at such an hour. At first blush, it seems unfair to treat 11:59 p.m. electronic service the same as service by hand during business hours for the purpose of triggering a time to act that is measured in calendar days. That unfairness is magnified where the papers are voluminous: electronic service imposes on the recipient the burden of printing and organizing papers that, if served by any other means, would arrive bound and tabbed.
On balance, however, the Committee does not believe that this is a reason to reject these Proposed Amendments. In most instances, counsel work out briefing schedules among themselves, and can address such issues as the timing of electronic service in their agreements. Almost invariably, a party that needs an additional day because of late-night service should be able to obtain it either by agreement or from the court. We therefore do not see this small anomaly as a barrier to what we otherwise agree is an efficient adjustment of the rules to comport with the realities of modern practice.
B. Tolling Motions
Fed. R. App. P. 4(a)(4) currently provides that “[i]f a party timely files in the district court” certain post-judgment motions, “the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion” (emphasis added). As the Advisory Committee explains, this rule has generated a split in the circuits concerning what happens if a district court has extended the deadline for such a post-judgment motion and no party has objected to that extension. The majority (including the Second Circuit) holds that compliance with such an extended deadline does not toll the time to file an appeal, but a minority (including the Sixth Circuit) holds that it does.
The Proposed Amendment would resolve this split by adopting the majority view: Fed.R App. P. 4(a)(4) would now specify that in order to toll the time to file an appeal, a post- judgment motion would have to be made “within the time allowed by” the Federal Rules of Civil Procedure.
The Committee’s Comments:
The Committee supports this amendment, which will create uniformity and clarity (and which, we note, will not change the practice in the Second Circuit).
Proposed amendments to the Fed. R. App. P. 4 and 25 and a new proposed Form 7, with accompanying revisions to Forms 1 and 5, would modify the requirements for litigants who are prison inmates to establish timely filing of notices of appeal and other papers in certain circumstances. Rule 4 relates to filing notices of appeal, which are initially filed in the district court from which the appeal is taken. Rule 25 relates to the filing of any paper in the court of appeals.
Under the current and amended version of those rules, inmates may file papers by mailing them to the courthouse, and their papers may be considered timely if deposited in the prison mailing system by the deadline for filing. The proposed amendments, which are substantively the same for Rule 4 and Rule 25, would alter the existing rules in three principal respects.
First, the current rules provide that “If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule.” The proposed amendments would eliminate this language, allowing inmates to take advantage of the timely-filing rule regardless of whether they use the institution’s legal mail system (if it has one) or its general mail system.
Second, the proposed amendments address when an inmate can submit a declaration or affidavit to establish that the filing was deposited in the mail system as of the filing deadline. The amendments would clarify that, subject to the court’s discretion, the inmate must include such a declaration or affidavit with the document being mailed. The current rule does not expressly require inclusion of such a declaration with the paper being filed, and courts have reached different conclusions as to whether an inmate can submit a declaration or affidavit of timely mailing after-the-fact.
Third, the proposed amendments modify the language required for such declarations or affidavits of timely filing. Among the amendments is a proposed Form 7, which is a sample inmate declaration of timely filing by mail.
The proposed revisions to Rule 25(a)(2)(C) and the accompanying proposed Advisory Committee Note are set forth below. (The revisions to Rule 4(c), which governs inmates filing a Notice of Appeal, are substantively the same.)
Proposed Revisions to Rule 25(a)(2)(C):
* * * * *
Filing: Method and Timeliness.
* * * * *
- Inmate filing. A paper filed by an inmate confined in an institution is timely if it is deposited in the institution’s internal mailing system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first- class postage has been prepaid. and:
- it is accompanied by:
- a declaration in compliance with 28 U.S.C. § 1746—or a notarized statement—setting out the date of deposit and stating that first-class postage is being prepaid; or
- evidence (such as a postmark or date stamp) showing that the paper was so deposited and that postage was prepaid; or
- the court of appeals exercises its discretion to permit the later filing of a declaration or notarized statement that satisfies Rule 25(a)(2)(C)(i).
Rule 25(a)(2)(C) is revised to streamline and clarify the operation of the inmate-filing rule. The second sentence of the former Rule—which had required the use of a “system designed for legal mail” when one existed—is deleted. The purposes of the Rule are served whether the inmate uses a system designed for legal mail or a system designed for nonlegal mail.
The Rule is amended to specify that a paper is timely if it is accompanied by a declaration or notarized statement stating the date the paper was deposited in the institution’s mail system and attesting to the prepayment of first-class postage. The declaration must state that first class postage “is being prepaid,” not (as directed by the former Rule) that first-class postage “has been prepaid.” This change reflects the fact that inmates may need to rely upon the institution to affix postage subsequent to the deposit of the document in the institution’s mail system.
New Form 7 in the Appendix of Forms sets out a suggested form of the declaration. The amended rule also provides that a paper is timely without a declaration or notarized statement if other evidence accompanying the paper shows that the paper was deposited on or before the due date and that postage was prepaid. If the paper is not accompanied by evidence that establishes timely deposit and prepayment of postage, then the court of appeals has discretion to accept a declaration or notarized statement at a later date.
As indicated above, the Advisory Committee proposes that a sample declaration be added to the Appellate Rules as a new Form 7. Form 7 is a sample court-captioned declaration. The body of the sample declaration reads as follows:
I am an inmate confined in an institution. I deposited the__________ [insert title of document, for example, “notice of appeal”] in this case in the institution’s internal mail system on ___________ [insert date], and first-class postage is being prepaid either by me or by the institution on my behalf.
To alert inmates to the requirements that would be imposed under the amendments to Appellate Rule 4, the Advisory Committee proposes the addition of new language to the sample notices of appeal (Forms 1 and 5). The warning would appear in bracketed language at the bottom of those Forms, as follows (the proposed changes to Form 1 and Form 5 are identical):
[Note to inmate filers: If you are an inmate confined in an institution and you seek the benefit of Fed. R. App. P. 4(c)(1), complete Form 7 (Declaration of Inmate Filing) and file that declaration along with the Notice of Appeal.]
The Committee’s Comments:
The Committee endorses the amendments (1) to include a sample declaration of timely filing (Form 7); and (2) to eliminate the distinction between an institution’s legal mail system and its general mail system. The Committee does not endorse the proposed amendments to the extent they require inmates to include an affidavit or declaration of timely mailing at the time of mailing itself.
The proposed amendments to the inmate filing provisions of Rules 4 and 25 would impose an additional procedural hurdle on a select class of pro se litigants, namely inmates of prisons or other institutions. Non-inmate pro se parties can deposit filings directly into the U.S. mail or with a private courier (the rules allow filing by mail for all parties, so long as the clerk receives the papers by the last day for filing). Different considerations apply to prison inmates, who have no direct access to the U.S. mail system, and no control over delays within a prison mail system. The current provisions in Rule 4(c) and Rule 25(a)(2)(C) reflect these considerations.
The Committee does not support the addition of a new procedural filing requirement designed solely to streamline and clarify the existing rule that could cause unwitting defaults by pro se prisoner litigants. In the Committee’s experience, pro se litigants can have difficulty complying with the numerous requirements for appellate filings, which can differ significantly from district court filing requirements. The Committee acknowledges that any unfairness to prisoner litigants is mitigated to some extent (1) because the proposed amendments permit the clerk’s offices to accept the filing if accompanied by other evidence of timeliness, such as a postmark or date stamp; and (2) because the proposed amendment gives the courts of appeals discretion to consider later-filed declarations of timely deposit. On balance, however, the Committee favors a rule that permits but does not require pro se prison inmates to include these sorts of declarations at the time of filing, or to later prove timeliness of filing if and when challenged.
The Committee endorses the amendments to include a sample declaration of timely filing (Form 7), and to include references to that sample in the current form notices of appeal. The Committee does not favor the language of the proposed new Form 7. The form declaration requires the inmate to swear under penalty of perjury that she “deposited” the paper for filing in the institution’s mail system as of a particular date. An inmate should not be required to declare that she “deposited” materials (past tense) as part of a declaration that she is supposed to include in the same envelope as the very materials being deposited. Interestingly, the Advisory Committee acknowledges and corrects a similar problem under the existing rule, and proposes requiring that the inmate declare that first class postage ‘is being prepaid,” not (as directed by the existing Rule) that it “has been prepaid.” See Advisory Committee Note to FRAP 4, 25 Amdts. (“This change reflects the fact that inmates may need to rely upon the institution to affix postage subsequent to the deposit of the document in the institution’s mail system.”). In addition, the past-tense language may cause further confusion for pro se inmates as to whether the declaration needs to be included in the same mailing as the document being filed.
The proposed amendments to Fed. R. App. P. 32 and 28.1 would reduce the word count limits for appellate briefs, reducing the word limit for main briefs from 14,000 words to 12,500 words; for reply briefs from 7,000 words to 6,250 words. In cases involving cross-appeals, the proposed amendments would reduce the word count for the appellant’s principal brief from 14,000 words to 12,500; the appellee/cross-appellant’s brief from 16,500 words to 14,700 words; and the appellant’s reply brief and the appellee/cross-appellant’s reply brief from 14,000 to 12,500 words. The proposed amendments do not affect the existing limits as stated in lines of text, which remain an alternative basis for complying with the rules’ length limits. The Advisory Committee explains that the reduction in word count limits is intended to correct an anomalous conversion rate that was used in 1998, when then-applicable page limits were converted into word and line limits:
When Rule 32(a)(7)(B)’s type-volume limits for briefs were adopted in 1998, the word limits were based on an estimate of 280 words per page. The basis for the estimate of 280 words per page is unknown, and the 1998 rules superseded at least one local circuit rule that used an estimate of 250 words per page based on a study of appellate briefs. The committee believes that the 1998 amendments inadvertently increased the length limits for briefs. Rule 32(a)(7)(B) is amended to reduce the word limits accordingly.
(Advisory Committee Note to Rule 32 Proposed Amdt.)
Further amendments to Rule 32 would clarify the specific sections of briefs that are excluded from the word count, set forth in a new Rule 32(f).
Finally, Rule 32 is amended to include a global certification requirement for virtually all papers filed before the court of appeals, not just briefs, that the paper complies with applicable type-volume requirements.
The revisions to Rule 32 are copied below.
Rule 32. Form of Briefs, Appendices, and Other Papers
- Form of a Brief.
* * * * *
- Page Limitation. A principal brief may not exceed 30 pages, or a reply brief 15 pages, unless it complies with Rule 32(a)(7)(B) and (C).
- A principal brief is acceptable if it complies with Rule 32(g) and:
- it contains no more than 14,00012,500 words; or
- it uses a monospaced face and contains no more than 1,300 lines of text.
- A reply brief is acceptable if it complies with Rule 32(g) and contains no more than half of the type volume specified in Rule 32(a)(7)(B)(i).
- Headings, footnotes, and quotations count toward the word and line limitations. The corporate disclosure statement, table of contents, table of citations, statement with respect to oral argument, any addendum containing statutes, rules or regulations, and any certificates of counsel do not count toward the limitation.
- Certificate of compliance.
- A brief submitted under Rules 28.1(e)(2) or 32(a)(7)(B) must include a certificate by the attorney, or an unrepresented party, that the brief complies with the type-volume limitation. The person preparing the certificate may rely on the word or line count of the word-processing system used to prepare the brief. The certificate must state either:
- the number of words in the brief; or
- the number of lines of monospaced type in the brief.
- Form 6 in the Appendix of Forms is a suggested form of a certificate of compliance. Use of Form 6 must be regarded as sufficient to meet the requirements of Rules 28.1(e)(3) and 32(a)(7)(C)(i).
* * * * *
- Items Excluded from Length. In computing any length limit, headings, footnotes, and quotations count toward the limit but the following items do not:
- a corporate disclosure statement
- a statement regarding oral argument
- an addendum containing statutes, rules, or regulations
- any item specifically excluded by rule.
- Certificate of Compliance.
- Briefs and Papers That Require a Certificate. A brief submitted under Rules 28.1(e)(2) or 32(a)(7)(B)—and a paper submitted under Rules 5(c)(2), 21(d)(2), 27(d)(2)(B), 27(d)(2)(D), 35(b)(2)(B), or 40(b)(2)—must include a certificate by the attorney, or an unrepresented party, that the document complies with the type-volume limitation. The person preparing the certificate may rely on the word or line count of the word-processing system used to prepare the document. The certificate must state the number of words—or the number of lines of monospaced type—in the document.
- Acceptable Form. Form 6 in the Appendix of Forms meets the requirements for a certificate of compliance.
Proposed amendments to Fed. R. App. P. 5, 21, 27, 32, 35, and 40 relate to filings other than parties’ merits briefs. Each Rule would be amended to include length limits for computer- generated papers in terms of number of words or, alternatively, number of lines printed in monospaced font. The amended versions of these rules preserve page limits only for handwritten or typewritten papers. The proposed limits effectively convert the existing page limits under these rules into word and line limits, applying a conversion rate of one page equaling 250 words or 26 lines of text.
The Advisory Committee proposes accompanying changes to Form 6, the sample certification that a party has complied with length limits for briefs. The revised Form 6 could be used for certifying compliance as to any “document” filed with the court of appeals, rather than merely briefs. The revised Form 6 reflects that, under the proposed amendments, a party can certify compliance with all computer-generated papers, not merely briefs, in terms of the document’s word count or line count.
The Committee’s Comments:
The Committee endorses these proposed amendments.
The Report of the Advisory Committee on Appellate Rules explains that the 1998 adoption of word limits inadvertently increased the permissible length of briefs before the courts of appeals. At that time, the Appellate Rules were amended to replace the 50-page limit for briefs with a 14,000 word limit, apparently employing a conversion rate of 280 words per page – a number of unknown origin. A study of briefs under the pre-1998 rules indicates that an average 250 words per page would have been a more accurate benchmark. The proposed amendments use this more accurate conversion rate, applying it to the 1998 page limits for briefs and the current limits (expressed in pages) for other filings. The Committee agrees with the Advisory Committee’s rationale of adopting word limits that better achieve the intended result of maintaining the length limits in place in 1998. Notwithstanding these amendments, any circuit could adopt local rules to maintain the existing limits or otherwise permit longer limits.
The Committee also endorses the proposed amendments relating to papers other than briefs on the merits, as they provide greater uniformity in length limits across different types of appellate papers, and greater clarity in calculating a paper’s length. Under the proposed amendments, the length limits for computer generated papers in support of petitions for Appeal by permission (Rule 5), mandamus and other extraordinary writs (Rule 21), motions (Rule 27), petitions for rehearing (Rule 40) and petitions for rehearing en banc (Rule 35), all currently expressed in pages, would be governed by word or line counts. The proposed amendments to Rule 32 provide more clarity as to what items are excluded from the word or line count. The more comprehensive list makes clear that the word or line count should not include any cover page, signature block, or proof of service – components that are not expressly mentioned in Rule 32’s current list of exclusions.
For the sake of fairness, the Committee notes that these amendments should be adopted or implemented in a manner that applies the changes in length limits only to appeals filed after the Effective Date, because without that specification there will be appeals in which the Appellee’s principal brief is subject to the shortened word count even though the Appellant’s principal brief was not.
Amicus Briefs on Petitions for Rehearing
No federal rule governs the timing and length of amicus briefs filed in connection with petitions for rehearing, and the Advisory Committee reports that most circuits have no local rule addressing such filings. The Proposed Amendments seek to fill this void by re-numbering Fed. R. App. P. 29 (which is titled “Brief of an Amicus Curiae” and addresses amicus briefs generally) as Fed. R. App. P. 29(a), titling that subsection “During Initial Consideration of a Case on the Merits,” adjusting the numbering of its sub-parts accordingly, and adding a new Fed. R. App. P. 29(b) entitled “During Consideration of Whether to Grant Rehearing.” The provisions of the new subsection would apply only where no “local rule or order in a case provides otherwise.” Thus, the rule would not require any circuit court to accept amicus briefs on such petitions or mandate any particular rules concerning the length or timing of such briefs; it would only establish default rules for timing and volume where such briefs are permitted.
The Proposed Rule sets a volume limit of 2,000 words, or 208 lines of text printed in a monospaced face – slightly more than half of the volume limit proposed for petitions for rehearing in the Proposed Amendments to Fed. R. Civ. P. 40. An amicus brief in support of a petition for rehearing (together with a motion for leave to file it if the amicus is not the United States, its officer or agency, or a state) would have to be filed no later than three days after the petition it supports. A brief in opposition to such a petition (together, again, with a motion for leave if required) would have to be filed no later than the date set by the court for any response to the petition.
The Committee’s Comments:
The Committee generally supports this clarification, particularly in light of the room it leaves for courts to develop their own rules. Presumably any circuit that disagrees with the default approach will promulgate a local rule to address the issue; thus, in either case, there will be a rule that provides counsel with some guidance in this area. We agree with the general proposition that having no rule at all leads to confusion – and in all likelihood burdens clerks’ offices with calls that would be unnecessary if there were a rule.
We do note, however, that the Advisory Committee has not explained why the deadline for an amicus brief opposing rehearing should presumptively be the same as the deadline for the opposing party’s brief. A motion for leave to file an amicus brief must state “the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.” Fed. R. App. P. 29(b)(2). As a practical matter, this generally requires the amicus to point out how its own interests in the outcome differ from those of the parties and how its position is not otherwise adequately represented in the briefs that are already before the court. It is difficult (if not impossible) for an amicus to do this until after the filing of the brief of the party whose ultimate position it is supporting.
We would therefore suggest that the default deadline for an amicus brief in opposition to a petition for rehearing be three days after the filing of the main brief in opposition. Although we recognize that this would require the court to wait three days to see if any amicus is filed, as a practical matter we do not believe that this will significantly lengthen the time it takes to resolve any motion for rehearing. We also note that opposition papers are permitted on such applications only where the court requests them. We respectfully submit that any application for rehearing that warrants such a request should also warrant the addition of three days to the briefing schedule to accommodate the interests of any amicus curiae.
We recognize that a three-day deadline is very short because (following the 2009 amendments) intermediate Saturdays, Sundays and holidays are no longer excluded from the counting. In some instances this could mean that a weekend represents all of the time an amicus has between the filing of the party’s brief and the deadline for its own. We do not, however, suggest an expansion of that time because we recognize that as a practical matter an amicus will have to begin preparing its papers at the same time it would if it were a party; the additional time would primarily give the amicus an opportunity to see the final version of the party’s brief and adjust its own accordingly. This opportunity should be available to an amicus on either side, but the default length of time need not (in our view) be any longer than what the Advisory Committee proposes.
Report prepared by:
Vincent T. Chang, Committee Co-Chair
Hon. Joseph Kevin McKay, Committee Co-Chair
Adrienne B. Koch, Committee Member
Kimo Peluso, Committee Member